Crafting the Modern Concept of Privacy


As is so often the case, it was a technological innovation—the camera—that helped spur a rethinking of the legal principles that protect our rights. What we typically think of today as "privacy" (the right to be left alone) first entered the popular vocabulary in 1890, when two Boston law partners, Samuel D. Warren and Louis D. Brandeis, published an article in the Harvard Law Review entitled "The Right to Privacy."

"Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life," the two attorneys wrote, "and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the housetops."'

Warren and Brandeis argued that the impact of these technological changes made it necessary for the common law to recognize an individual's right to prevent the collection and publication of personal information. Their warning, sounded nearly a century before People magazine, Entertainment Tonight, and nude celebrity websites, is uncannily prescient:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. ... The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world ... so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress. ... When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence. [3]

By the early 1930s, the "right to privacy" first proposed by Warren and Brandeis had earned a place in the First Restatement of Torts, one of the treatises that outlines the nation's generally accepted principles of law. According to the Restatement, "a person who reasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other."

Even as the U.S. legal system began to recognize a right to recover damages for invasion of privacy, technology was devising new and ingenious ways for our privacy to be invaded. Over the course of seventy or more years, both the U.S. Supreme Court and Congress have reacted to specific invasions of privacy (sometimes erroneously), yet neither has articulated or implemented a cohesive set of principles regarding personal privacy and its place in our list of freedoms.

[3]Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review, Vol. IV, No. 5 (December 15, 1890).




The Naked Employee. How Technology Is Compromising Workplace Privacy
Naked Employee, The: How Technology Is Compromising Workplace Privacy
ISBN: 0814471498
EAN: 2147483647
Year: 2003
Pages: 93

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